Florida Senate - 2009                             CS for SB 2404
       
       
       
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Storms
       
       
       
       586-03457-09                                          20092404c1
    1                        A bill to be entitled                      
    2         An act relating to adult protective services; amending
    3         s. 415.101, F.S.; revising terminology; amending s.
    4         415.102, F.S.; defining the term “activities of daily
    5         living” and revising the term “vulnerable adult”;
    6         conforming a cross-reference; amending s. 415.103,
    7         F.S.; requiring the central abuse hotline to
    8         immediately transfer certain calls relating to
    9         vulnerable adults to the appropriate local law
   10         enforcement agency; amending s. 415.1051, F.S.;
   11         authorizing the Department of Children and Family
   12         Services to file a petition to determine incapacity;
   13         prohibiting the department from acting as guardian or
   14         providing legal counsel to the guardian; amending s.
   15         322.142, F.S.; providing a cross-reference to
   16         authorize the release of certain records for purposes
   17         of protective investigations; amending ss. 943.0585
   18         and 943.059, F.S.; conforming cross-references;
   19         providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Subsection (2) of section 415.101, Florida
   24  Statutes, is amended to read:
   25         415.101 Adult Protective Services Act; legislative intent.—
   26         (2) The Legislature recognizes that there are many persons
   27  in this state who, because of age or disability, are in need of
   28  protective services. Such services should allow such an
   29  individual the same rights as other citizens and, at the same
   30  time, protect the individual from abuse, neglect, and
   31  exploitation. It is the intent of the Legislature to provide for
   32  the detection and correction of abuse, neglect, and exploitation
   33  through social services and criminal investigations and to
   34  establish a program of protective services for vulnerable adults
   35  all disabled adults or elderly persons in need of them. It is
   36  intended that the mandatory reporting of such cases will cause
   37  the protective services of the state to be brought to bear in an
   38  effort to prevent further abuse, neglect, and exploitation of
   39  vulnerable adults disabled adults or elderly persons. In taking
   40  this action, the Legislature intends to place the fewest
   41  possible restrictions on personal liberty and the exercise of
   42  constitutional rights, consistent with due process and
   43  protection from abuse, neglect, and exploitation. Further, the
   44  Legislature intends to encourage the constructive involvement of
   45  families in the care and protection of vulnerable adults
   46  disabled adults or elderly persons.
   47         Section 2. Present subsections (2) through (27) of section
   48  415.102, Florida Statutes, are redesignated as subsections (3)
   49  through (28), respectively, present subsections (4) and (26) are
   50  amended, and a new subsection (2) is added to that section, to
   51  read:
   52         415.102 Definitions of terms used in ss. 415.101-415.113.
   53  As used in ss. 415.101-415.113, the term:
   54         (2)“Activities of daily living” means functions and tasks
   55  for self-care, including eating, bathing, grooming, dressing,
   56  ambulating, and other similar tasks.
   57         (5)(4) “Caregiver” means a person who has been entrusted
   58  with or has assumed the responsibility for frequent and regular
   59  care of or services to a vulnerable adult on a temporary or
   60  permanent basis and who has a commitment, agreement, or
   61  understanding with that person or that person’s guardian that a
   62  caregiver role exists. The term “Caregiver” includes, but is not
   63  limited to, relatives, household members, guardians, neighbors,
   64  and employees and volunteers at a facility of facilities as
   65  defined in subsection (8). For the purpose of departmental
   66  investigative jurisdiction, the term “caregiver” does not
   67  include law enforcement officers or employees of municipal or
   68  county detention facilities or the Department of Corrections
   69  while acting in an official capacity.
   70         (27)(26) “Vulnerable adult” means a person 18 years of age
   71  or older whose ability to perform the normal activities of daily
   72  living or to provide for his or her own care or protection is
   73  impaired due to a mental, emotional, long-term physical,
   74  sensory, or developmental disability or dysfunction
   75  dysfunctioning, or brain damage, or the infirmities of aging.
   76         Section 3. Present paragraphs (c), (d), (e), (f), and (g)
   77  of subsection (1) of section 415.103, Florida Statutes, are
   78  redesignated as paragraphs (d), (e), (f), (g), and (h),
   79  respectively, and paragraph (c) is added to that subsection, to
   80  read:
   81         415.103 Central abuse hotline.—
   82         (1) The department shall establish and maintain a central
   83  abuse hotline that receives all reports made pursuant to s.
   84  415.1034 in writing or through a single statewide toll-free
   85  telephone number. Any person may use the statewide toll-free
   86  telephone number to report known or suspected abuse, neglect, or
   87  exploitation of a vulnerable adult at any hour of the day or
   88  night, any day of the week. The central abuse hotline must be
   89  operated in such a manner as to enable the department to:
   90         (c)Immediately transfer calls to the appropriate law
   91  enforcement agency if the report is of known or suspected abuse
   92  by someone other than the vulnerable adult’s relative caregiver.
   93         Section 4. Paragraph (e) of subsection (1) and paragraph
   94  (g) of subsection (2) of section 415.1051, Florida Statutes, are
   95  amended to read:
   96         415.1051 Protective services interventions when capacity to
   97  consent is lacking; nonemergencies; emergencies; orders;
   98  limitations.—
   99         (1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.—If the
  100  department has reasonable cause to believe that a vulnerable
  101  adult or a vulnerable adult in need of services is being abused,
  102  neglected, or exploited and is in need of protective services
  103  but lacks the capacity to consent to protective services, the
  104  department shall petition the court for an order authorizing the
  105  provision of protective services.
  106         (e) Continued protective services.—
  107         1. Within No more than 60 days after the date of the order
  108  authorizing the provision of protective services, the department
  109  shall petition the court to determine whether:
  110         a. Protective services will be continued with the consent
  111  of the vulnerable adult pursuant to this subsection;
  112         b. Protective services will be continued for the vulnerable
  113  adult who lacks capacity;
  114         c. Protective services will be discontinued; or
  115         d. A petition for guardianship should be filed pursuant to
  116  chapter 744.
  117         2. If the court determines that a petition for guardianship
  118  should be filed pursuant to chapter 744, the court, for good
  119  cause shown, may order continued protective services until it
  120  makes a determination regarding capacity.
  121         3.The petition to determine incapacity under s. 744.3201
  122  may be filed by the department if the department has a good
  123  faith belief that the vulnerable adult lacks capacity. However,
  124  once the petition is filed, the department may not be appointed
  125  guardian and may not provide legal counsel for the guardian.
  126         (2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.—If the
  127  department has reasonable cause to believe that a vulnerable
  128  adult is suffering from abuse or neglect that presents a risk of
  129  death or serious physical injury to the vulnerable adult and
  130  that the vulnerable adult lacks the capacity to consent to
  131  emergency protective services, the department may take action
  132  under this subsection. If the vulnerable adult has the capacity
  133  to consent and refuses consent to emergency protective services,
  134  emergency protective services may not be provided.
  135         (g) Continued emergency protective services.—
  136         1. Within Not more than 60 days after the date of the order
  137  authorizing the provision of emergency protective services, the
  138  department shall petition the court to determine whether:
  139         a. Emergency protective services will be continued with the
  140  consent of the vulnerable adult;
  141         b. Emergency protective services will be continued for the
  142  vulnerable adult who lacks capacity;
  143         c. Emergency protective services will be discontinued; or
  144         d. A petition should be filed under chapter 744.
  145         2. If it is decided to file a petition under chapter 744,
  146  for good cause shown, the court may order continued emergency
  147  protective services until a determination is made by the court.
  148         3.The petition to determine incapacity under s. 744.3201
  149  may be filed by the department if the department has a good
  150  faith belief that the vulnerable adult lacks capacity. However,
  151  once the petition is filed, the department may not be appointed
  152  guardian and may not provide legal counsel for the guardian.
  153         Section 5. Subsection (4) of section 322.142, Florida
  154  Statutes, is amended to read:
  155         322.142 Color photographic or digital imaged licenses.—
  156         (4) The department may maintain a film negative or print
  157  file. The department shall maintain a record of the digital
  158  image and signature of the licensees, together with other data
  159  required by the department for identification and retrieval.
  160  Reproductions from the file or digital record are exempt from
  161  the provisions of s. 119.07(1) and may shall be made and issued
  162  only for departmental administrative purposes; for the issuance
  163  of duplicate licenses; in response to law enforcement agency
  164  requests; to the Department of State pursuant to an interagency
  165  agreement to facilitate determinations of eligibility of voter
  166  registration applicants and registered voters in accordance with
  167  ss. 98.045 and 98.075; to the Department of Revenue pursuant to
  168  an interagency agreement for use in establishing paternity and
  169  establishing, modifying, or enforcing support obligations in
  170  Title IV-D cases; to the Department of Children and Family
  171  Services pursuant to an interagency agreement to conduct
  172  protective investigations under part III of chapter 39 or
  173  chapter 415; or to the Department of Financial Services pursuant
  174  to an interagency agreement to facilitate the location of owners
  175  of unclaimed property, the validation of unclaimed property
  176  claims, and the identification of fraudulent or false claims.
  177         Section 6. Paragraph (a) of subsection (4) of section
  178  943.0585, Florida Statutes, is amended to read:
  179         943.0585 Court-ordered expunction of criminal history
  180  records.—The courts of this state have jurisdiction over their
  181  own procedures, including the maintenance, expunction, and
  182  correction of judicial records containing criminal history
  183  information to the extent such procedures are not inconsistent
  184  with the conditions, responsibilities, and duties established by
  185  this section. Any court of competent jurisdiction may order a
  186  criminal justice agency to expunge the criminal history record
  187  of a minor or an adult who complies with the requirements of
  188  this section. The court shall not order a criminal justice
  189  agency to expunge a criminal history record until the person
  190  seeking to expunge a criminal history record has applied for and
  191  received a certificate of eligibility for expunction pursuant to
  192  subsection (2). A criminal history record that relates to a
  193  violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
  194  s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
  195  827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
  196  893.135, s. 916.1075, a violation enumerated in s. 907.041, or
  197  any violation specified as a predicate offense for registration
  198  as a sexual predator pursuant to s. 775.21, without regard to
  199  whether that offense alone is sufficient to require such
  200  registration, or for registration as a sexual offender pursuant
  201  to s. 943.0435, may not be expunged, without regard to whether
  202  adjudication was withheld, if the defendant was found guilty of
  203  or pled guilty or nolo contendere to the offense, or if the
  204  defendant, as a minor, was found to have committed, or pled
  205  guilty or nolo contendere to committing, the offense as a
  206  delinquent act. The court may only order expunction of a
  207  criminal history record pertaining to one arrest or one incident
  208  of alleged criminal activity, except as provided in this
  209  section. The court may, at its sole discretion, order the
  210  expunction of a criminal history record pertaining to more than
  211  one arrest if the additional arrests directly relate to the
  212  original arrest. If the court intends to order the expunction of
  213  records pertaining to such additional arrests, such intent must
  214  be specified in the order. A criminal justice agency may not
  215  expunge any record pertaining to such additional arrests if the
  216  order to expunge does not articulate the intention of the court
  217  to expunge a record pertaining to more than one arrest. This
  218  section does not prevent the court from ordering the expunction
  219  of only a portion of a criminal history record pertaining to one
  220  arrest or one incident of alleged criminal activity.
  221  Notwithstanding any law to the contrary, a criminal justice
  222  agency may comply with laws, court orders, and official requests
  223  of other jurisdictions relating to expunction, correction, or
  224  confidential handling of criminal history records or information
  225  derived therefrom. This section does not confer any right to the
  226  expunction of any criminal history record, and any request for
  227  expunction of a criminal history record may be denied at the
  228  sole discretion of the court.
  229         (4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.—Any
  230  criminal history record of a minor or an adult which is ordered
  231  expunged by a court of competent jurisdiction pursuant to this
  232  section must be physically destroyed or obliterated by any
  233  criminal justice agency having custody of such record; except
  234  that any criminal history record in the custody of the
  235  department must be retained in all cases. A criminal history
  236  record ordered expunged that is retained by the department is
  237  confidential and exempt from the provisions of s. 119.07(1) and
  238  s. 24(a), Art. I of the State Constitution and not available to
  239  any person or entity except upon order of a court of competent
  240  jurisdiction. A criminal justice agency may retain a notation
  241  indicating compliance with an order to expunge.
  242         (a) The person who is the subject of a criminal history
  243  record that is expunged under this section or under other
  244  provisions of law, including former s. 893.14, former s. 901.33,
  245  and former s. 943.058, may lawfully deny or fail to acknowledge
  246  the arrests covered by the expunged record, except when the
  247  subject of the record:
  248         1. is a candidate for employment with a criminal justice
  249  agency;
  250         2. is a defendant in a criminal prosecution;
  251         3. Concurrently or subsequently petitions for relief under
  252  this section or s. 943.059;
  253         4. is a candidate for admission to The Florida Bar;
  254         5. Is seeking to be employed or licensed by or to contract
  255  with the Department of Children and Family Services, the Agency
  256  for health Care Administration, the Agency for persons with
  257  Disabilities, or the Department of Juvenile Justice or to be
  258  employed or used by such contractor or licensee in a sensitive
  259  position having direct contact with children, the
  260  developmentally disabled, the aged, or the elderly as provided
  261  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  262  402.302(3), s. 402.313(3), s. 409.175(2)(I), s. 415.102(5)(4),
  263  chapter 916, s. 985.644, chapter 400, or chapter 429;
  264         6. Is seeking to be employed or licensed by the Department
  265  of Education, any district school board, any university
  266  laboratory school, any charter school, any private or parochial
  267  school, or any local governmental entity that licenses child
  268  care facilities; or
  269         7. Is seeking authorization from a Florida seaport
  270  identified in s. 311.09 for employment within or access to one
  271  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  272         Section 7. Paragraph (a) of subsection (4) of section
  273  943.059, Florida Statutes, is amended to read:
  274         943.059 Court-ordered sealing of criminal history records.
  275  The courts of this state shall continue to have jurisdiction
  276  over their own procedures, including the maintenance, sealing,
  277  and correction of judicial records containing criminal history
  278  information to the extent such procedures are not inconsistent
  279  with the conditions, responsibilities, and duties established by
  280  this section. Any court of competent jurisdiction may order a
  281  criminal justice agency to seal the criminal history record of a
  282  minor or an adult who complies with the requirements of this
  283  section. The court shall not order a criminal justice agency to
  284  seal a criminal history record until the person seeking to seal
  285  a criminal history record has applied for and received a
  286  certificate of eligibility for sealing pursuant to subsection
  287  (2). A criminal history record that relates to a violation of s.
  288  393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
  289  800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
  290  839, s. 847.0133, s. 847.0135,s. 847.0145, s. 893.135, s.
  291  916.1075, a violation enumerated in s. 907.041, or any violation
  292  specified as a predicate offense for registration as a sexual
  293  predator pursuant to s. 775.21, without regard to whether that
  294  offense alone is sufficient to require such registration, or for
  295  registration as a sexual offender pursuant to s. 943.0435, may
  296  not be sealed, without regard to whether adjudication was
  297  withheld, if the defendant was found guilty of or pled guilty or
  298  nolo contendere to the offense, or if the defendant, as a minor,
  299  was found to have committed or pled guilty or nolo contendere to
  300  committing the offense as a delinquent act. The court may only
  301  order sealing of a criminal history record pertaining to one
  302  arrest or one incident of alleged criminal activity, except as
  303  provided in this section. The court may, at its sole discretion,
  304  order the sealing of a criminal history record pertaining to
  305  more than one arrest if the additional arrests directly relate
  306  to the original arrest. If the court intends to order the
  307  sealing of records pertaining to such additional arrests, such
  308  intent must be specified in the order. A criminal justice agency
  309  may not seal any record pertaining to such additional arrests if
  310  the order to seal does not articulate the intention of the court
  311  to seal records pertaining to more than one arrest. This section
  312  does not prevent the court from ordering the sealing of only a
  313  portion of a criminal history record pertaining to one arrest or
  314  one incident of alleged criminal activity. Notwithstanding any
  315  law to the contrary, a criminal justice agency may comply with
  316  laws, court orders, and official requests of other jurisdictions
  317  relating to sealing, correction, or confidential handling of
  318  criminal history records or information derived therefrom. This
  319  section does not confer any right to the sealing of any criminal
  320  history record, and any request for sealing a criminal history
  321  record may be denied at the sole discretion of the court.
  322         (4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.—A criminal
  323  history record of a minor or an adult which is ordered sealed by
  324  a court of competent jurisdiction pursuant to this section is
  325  confidential and exempt from the provisions of s. 119.07(1) and
  326  s. 24(a), Art. I of the State Constitution and is available only
  327  to the person who is the subject of the record, to the subject’s
  328  attorney, to criminal justice agencies for their respective
  329  criminal justice purposes, which include conducting a criminal
  330  history background check for approval of firearms purchases or
  331  transfers as authorized by state or federal law, to judges in
  332  the state courts system for the purpose of assisting them in
  333  their case-related decisionmaking responsibilities, as set forth
  334  in s. 943.053(5), or to those entities set forth in
  335  subparagraphs (a)1., 4., 5., 6., and 8. for their respective
  336  licensing, access authorization, and employment purposes.
  337         (a) The subject of a criminal history record sealed under
  338  this section or under other provisions of law, including former
  339  s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
  340  deny or fail to acknowledge the arrests covered by the sealed
  341  record, except when the subject of the record:
  342         1. is a candidate for employment with a criminal justice
  343  agency;
  344         2. Is a defendant in a criminal prosecution;
  345         3. Concurrently or subsequently petitions for relief under
  346  this section or s. 943.0585;
  347         4. is a candidate for admission to The Florida Bar;
  348         5. Is seeking to be employed or licensed by or to contract
  349  with the Department of Children and Family Services, the Agency
  350  for Health Care Administration, the Agency for Persons with
  351  Disabilities, or the Department of Juvenile Justice or to be
  352  employed or used by such contractor or licensee in a sensitive
  353  position having direct contact with children, the
  354  developmentally disabled, the aged, or the elderly as provided
  355  in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
  356  402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
  357  s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
  358  429;
  359         6. Is seeking to be employed or licensed by the Department
  360  of Education, any district school board, any university
  361  laboratory school, any charter school, any private or parochial
  362  school, or any local governmental entity that licenses child
  363  care facilities;
  364         7. Is attempting to purchase a firearm from a licensed
  365  importer, licensed manufacturer, or licensed dealer and is
  366  subject to a criminal history background check under state or
  367  federal law; or
  368         8. Is seeking authorization from a Florida seaport
  369  identified in s. 311.09 for employment within or access to one
  370  or more of such seaports pursuant to s. 311.12 or s. 311.125.
  371         Section 8. This act shall take effect July 1, 2009.